119 F.

3d 217

UNITED STATES of America, Appellee,

v.
Frank DESIMONE, Sr.; Thomas Gagliardi, aka "Tommy";
Louis
Esa, aka "A.J. Duhe", aka "John McQuire", aka "Louis";
Felix Nunez; Earl Reynolds, aka "Robert Reynolds", aka
"Bob", aka "Boo-Boo"; Carl Rogasta, aka "Carmen Vignola",
aka "Carlo"; Robert Santora, aka "Robert Amato"; Richard
Sinde, aka "Richie", Defendants,
Pablo Fernandez, Defendant-Appellant.
No. 440, Docket 96-1023.

United States Court of Appeals,

Second Circuit.
Argued Oct. 11, 1996.
Decided July 28, 1997.

Jeremy G. Epstein, New York City (Harmeet K. Dhillon, Shearman &

Sterling, New York City, of counsel), for Appellant Pablo Fernandez.
Allen D. Applbaum, Assistant United States Attorney, New York City
(Mary Jo White, United States Attorney, Craig A. Stewart, Assistant
United States Attorney, Southern District of New York, New York City,
of counsel), for Appellee United States of America.
Before: CARDAMONE, MAHONEY,* Circuit Judges, and RESTANI **,
Judge.
CARDAMONE, Circuit Judge:

Defendant Pablo Fernandez appeals from a December 22, 1995 judgment of the
United States District Court for the Southern District of New York (Sprizzo, J.)
convicting him of one count of conspiracy to distribute and possess with intent
to distribute cocaine, in violation of 21 U.S.C. 846. Fernandez' primary
challenge on appeal is that the evidence presented was insufficient to support

his conviction. He uses this argument as a platform from which he mounts a

variety of other challenges to his conviction and sentence; each additional
argument depends to some degree on our assessment of the sufficiency of the
evidence. That is, it is basically the same argument clothed in different verbal
garb. Consequently, because defendant fails to establish that the evidence was
deficient, each of the additional, dependent arguments must also fail.
BACKGROUND
2

An undercover investigation of Louis Esa, who was the alleged leader of a

widespread criminal enterprise engaged in counterfeiting, credit card fraud,
narcotics distribution, and other crimes, led FBI agents to arrest Ronald Besho,
one of Esa's counterfeiting coconspirators. In exchange for a reduced sentence
recommendation on counterfeiting charges, Besho agreed to arrange a narcotics
transaction with Esa. During the ensuing investigation most of Besho's
telephone conversations and many of his face-to-face encounters with the
alleged coconspirators were recorded.

At the behest of FBI agents Besho called Esa in December 1991 saying that his
friend, "Mike," wanted to purchase cocaine. Esa responded that a person named
"Pablo" could supply it. On January 6, 1992 Besho and Esa met at Esa's
brother's Manhattan apartment to discuss the proposed transaction. While they
talked, Esa packaged three ounces of cocaine into gram bags for street sales,
telling Besho that the cocaine had come from defendant Pablo Fernandez, and
that Fernandez was expecting another "20 to 30 keys" shortly. Esa stated that
defendant planned to give him ten kilograms "to move."

After the January 6 meeting, Esa relocated to Florida, but continued to speak
periodically by telephone with Besho. In a conversation recorded on January
14, Esa advised Besho to call Fernandez to find out the price of the cocaine.
When Besho asked what his "cut" would be, Esa said he expected to split the
profits from the sale with Besho. In a telephone conversation three days later,
Esa coached Besho on what to say during the negotiation with Fernandez and
instructed him to "get the price, ... make our money, and ... send me my
money." On the afternoon of January 20 Besho told Esa that he planned to meet
Fernandez later that day, and Esa cautioned him not to bring "Mike" to the
meeting for fear that Mike and Fernandez might cut Besho out of the deal.

Later that day Besho, Fernandez, and "Chino," an associate of Fernandez, met
at the Columbus Restaurant on Manhattan's Upper West Side. Besho testified
that Fernandez agreed to supply five kilograms of cocaine at a price of $16,500
per kilogram and that they had devised a plan for the exchange: Mike would

drive the cash for the purchase to a nearby location in his car, and Chino and
Fernandez would bring the cocaine in a different car. Besho and Fernandez
would then meet at the restaurant, reveal the location of their respective cars,
and conclude the transaction by exchanging cars.
6

The next day, January 21, Besho and Fernandez spoke briefly by phone.
Fernandez warned Besho, in code, that he might not be able to provide cocaine
at the price quoted the day before, but promised to call the next day with a
definite price. Besho and Esa talked on the telephone three times that day. In
the first two conversations, they discussed the deal in general terms. During the
third call, Esa advised Besho that it would be safer to exchange only one
kilogram of cocaine at a time, rather than delivering the cash for all five
kilograms at once.

In a series of telephone conversations on the evening of January 21 and the

morning of January 22, Fernandez confirmed that he would have to charge
$17,000 per kilogram, rather than the $16,500 promised on January 20. Besho
initially rejected the higher price, but later told Fernandez that "Mike" still
wanted to go ahead with the deal. On January 22 Besho met again with
Fernandez and Chino at the Columbus Restaurant to consummate the sale.
After Besho assured Fernandez that he had the money nearby, Fernandez sent
Chino to get the cocaine. About 20 minutes later, Fernandez told Besho that
Chino was nervous about bringing the cocaine to the Upper West Side, and that
Besho should instead bring the cash to Washington Heights, where Chino
would meet him with the cocaine. Besho called the undercover agent posing as
"Mike," who directed him not to travel to Washington Heights. Thus, the
planned exchange did not take place.

When Besho called Esa the next day, January 23, to explain why the deal had
fallen through, Esa suggested that Besho enlist the aid of Felix Nunez. Nunez
agreed, at the request of Besho and Esa, to mediate and told Besho to arrange a
meeting with Fernandez at noon the following day. Fernandez and Besho met
on January 24 to discuss the problem. Over the course of the following week,
Besho, Fernandez, Esa and Nunez continued to discuss the deal, although no
money or narcotics ever changed hands. In a telephone conversation on January
27, Esa told Besho that Fernandez and Nunez suspected that Besho was an
informant. Later that day, Nunez called Besho and then put Fernandez on the
line to talk to Besho about the proposed sale.

On January 29 Besho had a three-way conversation with Fernandez and Esa.

They discussed Fernandez' fear that Besho was a cop or an informant, and
Fernandez again urged Besho to complete the five-kilogram sale in Washington

Heights. Esa urged Besho to agree to Fernandez' plan. In the end, however, the
transaction was never consummated because Besho adamantly refused to travel
to Washington Heights and Fernandez just as adamantly refused to make the
exchange anywhere else.
10

Fernandez, Nunez, Esa and others were eventually charged in a multi-count

indictment alleging multiple acts of narcotics conspiracy and trafficking,
robbery, credit card fraud, counterfeiting, and forgery. On February 15, 1994
Judge Sprizzo granted Fernandez' motion to sever Count 19, the only count in
which appellant was named. Following a three-day jury trial, Fernandez and
Nunez were convicted of conspiring to violate federal narcotics laws, in
violation of 21 U.S.C. 846. Fernandez was later sentenced to 121 months
imprisonment, to be followed by five years supervised release and a mandatory
$50 special assessment. From this conviction, Fernandez appeals. We affirm.

DISCUSSION
I Conspiracy
A. Standards of Proof for Conspiracy
11

Appellant argues first that the evidence presented at trial was insufficient to
show either that a conspiracy existed or that he intended to sell narcotics to
Besho. A defendant seeking to overturn a conviction on the grounds that the
evidence was insufficient bears a heavy burden. United States v. Russo, 74 F.3d
1383, 1395 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 293, 136 L.Ed.2d 213
(1996); United States v. Wallace, 59 F.3d 333, 338 (2d Cir.1995). A conviction
challenged on sufficiency grounds will be affirmed if, viewing all the evidence
in the light most favorable to the prosecution, a reviewing court finds that "any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Pitre, 960 F.2d 1112, 1120
(2d Cir.1992). A reviewing court must view the evidence as a whole, see
United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), and give
deference to the jury's resolution of the credibility of witnesses where there is
conflicting testimony. See United States v. Pelaes, 790 F.2d 254, 259 (2d
Cir.1986). Further, the government's proof need not exclude "every possible
hypothesis of innocence." United States v. Friedman, 998 F.2d 53, 59 (2d
Cir.1993) (internal quotations omitted).

12

In order to prove a conspiracy, the government must show that two or more
persons agreed to participate in a joint venture intended to commit an unlawful

act. See United States v. Martino, 664 F.2d 860, 876 (2d Cir.1981). Because a
conspiracy requires the participation of at least two culpable co-conspirators,
United States v. Hendrickson, 26 F.3d 321, 333 (2d Cir.1994), it follows that "
[a] person who enters into such [a conspiratorial] agreement while acting as an
agent of the government, either directly or as a confidential informant, lacks the
criminal intent necessary to render him a bona fide co-conspirator." United
States v. Vazquez, 113 F.3d 383, 387 (2d Cir.1997).
13

The existence of--and a particular defendant's participation in--a conspiracy

may be established entirely by circumstantial evidence. See United States v.
Gordon, 987 F.2d 902, 907 (2d Cir.1993). Moreover, the conspiratorial
agreement itself may be established by proof of a tacit understanding among
the participants, rather than by proof of an explicit agreement, see id. at 906,
and the absence of an actual sale or seizure of narcotics does not render
insufficient the proof of a conspiracy to distribute it, see United States v. Sureff,
15 F.3d 225, 228-29 (2d Cir.1994) (upholding conspiracy conviction where
cocaine never explicitly mentioned, no drugs seized, and no direct testimony as
to drug transactions).

14

An individual defendant's membership in a conspiracy may not be established

simply by his presence at the scene of a crime, nor by the fact he knows that a
crime is being committed. Instead, membership requires proof of purposeful
behavior aimed at furthering the goals of the conspiracy. See United States v.
Torres, 901 F.2d 205, 220 (2d Cir.1990). Once the existence of a conspiracy
has been shown, it does not take overwhelming proof to link additional
defendants to it. See Casamento, 887 F.2d at 1156.

B. Conspiracy Standards Applied to Instant Case

15
16

Appellant contends the government did not prove there was an agreement
between him and any of the alleged coconspirators. The government concedes
that as a government informant Besho cannot be considered a culpable
coconspirator. Fernandez maintains that the proof before the jury was also
insufficient to support a finding that he entered into an agreement with either
Esa or Nunez.

17

1. Agreement with Esa. Fernandez asserts no conspiratorial agreement existed

between him and Esa because Esa's role was simply to introduce Besho to him.
For this proposition, he relies on United States v. Tyler, 758 F.2d 66, 69 (2d
Cir.1985) and United States v. Hysohion, 448 F.2d 343, 347 (2d Cir.1971),
where we held that a defendant is not a party to a conspiratorial agreement
simply because he introduced a person willing to buy drugs to another person

willing to sell them.

18

In Tyler we reversed the conspiracy conviction of a defendant who introduced

an undercover officer to a drug dealer from whom the officer subsequently
purchased heroin. 758 F.2d at 70. In reaching that result, we observed that
proof that Tyler asked the buyer how much heroin he wanted, that Tyler knew
where to obtain heroin and that he knew anything about the seller or his
whereabouts was "conspicuously absent." Id. at 68-69. Each of the factors
"conspicuously absent" in Tyler is present in this case. When Besho initially
told Esa that he was looking for between two and ten kilograms of cocaine for
"Mike," Esa recommended that Besho purchase the cocaine from appellant and
told Besho how to contact him. Esa professed intimate knowledge of Fernandez'
narcotics operation, including details of a substantial shipment of cocaine
expected by Fernandez in January 1992. Esa related this information to Besho
while he was packaging gram bags of cocaine, which he explained came to him
from Fernandez.

19

The inference that there was an agreement between Fernandez and Esa was
bolstered by Esa's continued involvement in the deal after introducing Besho to
Fernandez. Taken in the light most favorable to the government, the evidence
showed that Esa acted as both an advisor to Besho and a mediator between
Besho and Fernandez as they attempted to consummate the narcotics sale. Esa
monitored Besho's progress with Fernandez through regular telephone
conversations and maintained independent contact with both Nunez and
Fernandez to discuss the proposed transaction. In the January 29 three-way
telephone conversation between Esa, Besho and Fernandez, Esa urged Besho to
agree to Fernandez' proposal to complete the sale in Washington Heights.

20

Later, in a final attempt to resolve the conflict between Fernandez and Besho,
Esa invited Nunez to help broker the deal. The evidence further demonstrated
that Esa's assistance was offered not as a favor, but with an expectation of
compensation from the profits of the cocaine sale. Esa's financial stake in the
outcome of the negotiations constituted proof of his interest in furthering the
goals of the conspiracy. Based on this evidence, the jury could reasonably have
concluded that Esa and Fernandez had a tacit agreement to bring about the sale
of five to ten kilograms of cocaine to Besho.

21

2. Agreement with Nunez. Fernandez also contends that the government failed
to prove the existence of an agreement between Nunez and himself. Although
the agreement between Esa and Fernandez is sufficient to affirm Fernandez'
conspiracy conviction, we briefly address this additional contention. The
government's evidence, appellant believes, simply proved that Nunez and

appellant acted as "freelance competitors" for Besho's business. While this may
be one plausible view of the evidence, it is not the only one. Several of the
taped conversations indicated that Nunez was working with Fernandez, not
competing against him. For example, on January 23, Nunez advised Besho that
he could be contacted through Fernandez. On January 27 Nunez and Fernandez
were together when they called Besho to discuss the deal--Nunez placed the
call then handed the receiver to Fernandez. In a telephone conversation taped
on January 29 Nunez explained to Besho that although he would have preferred
to supply the cocaine for the deal himself, he didn't want "to go over Pablo[
Fernandez'] head." Nunez then described a conversation with Fernandez in
which "Pablo said we going [sic] to do it together because he didn't know you
... and I know you and I say [sic] OK." Thus, a jury could reasonably have
inferred from both the substance and the circumstances of the taped
conversations that appellant and Nunez had entered into an agreement to sell
cocaine to Besho.
C. Defendant's Ability to Supply Cocaine
22

Appellant next maintains that the prosecution failed to show that he was
actually capable of supplying "five kilograms and more of cocaine," as alleged
in the indictment. As a preliminary matter, we note that because the particular
quantity of narcotics is not an element of the offense, a jury's verdict will be
upheld where there is evidence that the defendant conspired to sell any quantity
of an illegal narcotic substance. See United States v. Jacobo, 934 F.2d 411, 415
(2d Cir.1991). Fernandez urges that the government's failure to seize or
produce any cocaine proves the defense theory that the cocaine negotiations
were designed to lure Besho to Washington Heights with a large amount of cash
so that he and his associates could rob Besho of the money, not sell him
cocaine. Again, while a jury could have credited the defendant's theory that he
intended to rob Besho, the evidence does not compel such a finding.

23

Fernandez' capacity and intent to deliver the promised quantity of cocaine

could, for example, have been inferred from Esa's claim that the three ounces of
cocaine he was repackaging on January 6 came from Fernandez, or from Esa's
further statement that Fernandez was expecting an additional shipment of 20-30
kilograms that month. The tapes established that Esa and Fernandez knew each
other, and the evidence was sufficient to allow the jury to rely on Esa's
statements--as Esa was shown to be familiar with the nature and extent of
Fernandez' criminal activities--at least with regard to the sale of narcotics.
While Fernandez' stubborn insistence on having Besho bring a large amount of
cash to Washington Heights could be interpreted as an attempt to maneuver
Besho to a convenient location for a robbery, it could also support a finding

that Fernandez was an experienced dealer who, though cautious, was

nonetheless ready and willing to complete the sale. Faced with competing
reasonable inferences drawn from the evidence, we are required to defer to the
jury's resolution implicit in its guilty verdict.
24

Appellant's insistence that the government is or ought to be held to a higher

standard of proof where the negotiated quantity of narcotics is not delivered or
seized is similarly without merit. We have explicitly rejected the notion that
circumstantial evidence is inherently weaker than direct evidence. Sureff, 15
F.3d at 229. A narcotics conspiracy may be established entirely by
circumstantial evidence if, from inferences fairly drawn, the jury could have
found beyond a reasonable doubt that the defendant was guilty of the criminal
conduct charged against him. Id. at 228. We believe the quantity and quality of
evidence of Fernandez' agreement with Esa and Nunez and his capacity to
provide the negotiated amounts of cocaine amply supported defendant's
conviction.

II Multiple Conspiracy Charge

25

Building from his assertion that the government failed to show an agreement
between him and any of the alleged coconspirators, Fernandez declares that the
court erred in failing to include a multiple conspiracy charge in its jury
instructions. Before turning to the merits, we consider the appropriate standard
of review.

26

Ordinarily, when a criminal defendant fails to object to a perceived trial error

an appellate court will review that issue only for plain error. Fed.R.Crim.P.
52(b). This rule also applies where a defendant seeks reversal on the ground
that a trial court failed to give a jury instruction that was not specifically
requested. See United States v. Lanese, 890 F.2d 1284, 1290 (2d Cir.1989)
(citing Fed.R.Crim.P. 30). Appellant concedes he did not request a multiple
conspiracy charge, but avers that because his codefendant, Nunez,
unsuccessfully sought such an instruction, his failure to object ought to be
excused. See United States v. Ghazaleh, 58 F.3d 240, 244 (6th Cir.1995)
(declining to limit consideration of court's failure to give multiple conspiracy
instruction to plain error review where codefendant's unsuccessful objection
could reasonably have led defendant to believe that separate motion was futile),
cert. denied, --- U.S. ----, 116 S.Ct. 716, 133 L.Ed.2d 669 (1996). Because
appellant's claim of error would fail under either de novo or plain error review,
we need not resolve the waiver issue.

27

In addition, although Fernandez frames the alleged error as a failure to give a

multiple conspiracy instruction, the structure of his argument and the

precedents cited in his brief suggest that his argument is perhaps more
appropriately characterized as an assertion of an impermissible variance
between the conspiracy alleged in the indictment and the conduct proved at
trial. While a defendant's failure to object may waive his right to a multiple
conspiracy instruction, even where one is warranted, a conviction will be
reversed where the defendant can show that (1) the indictment charged a single
conspiracy, but the proof disclosed several independent conspiracies, and (2)
defendant was so prejudiced by this variance as to be denied a fair trial. United
States v. Johansen, 56 F.3d 347, 350 (2d Cir.1995); United States v. Bertolotti,
529 F.2d 149, 155 (2d Cir.1975).
28

To determine whether the proof supports a finding of a single or multiple

conspiracies, we first examine the scope of the proven criminal enterprises to
determine whether any of them fits the pattern of the conspiracy alleged in the
indictment. Johansen, 56 F.3d at 351 (improper variance where indictment
charged single conspiracy but evidence proved only that multiple, unrelated
individuals had independently engaged in fraudulent transactions with a single
person). We then assess whether the jury could reasonably infer from
defendant's conduct that he knowingly took part in the alleged criminal
enterprise. Id. In other words, we conduct an inquiry substantially similar to
that required to evaluate appellant's claim of insufficiency of the evidence. And,
as we have already determined that the proof supports a finding that an
agreement existed between Esa, Fernandez, and Nunez--as alleged in the
indictment--to sell cocaine to Besho, Fernandez' claim of an improper variance
must fail for the same reasons that his insufficiency claim fails.

III Failure to Define Reasonable Doubt

29

In its instructions to the jury the district court repeatedly advised that the
government bore the burden of proving the defendant's guilt beyond a
reasonable doubt, although it did not define "reasonable doubt." The following
morning, after the jury had already deliberated for approximately three hours,
defense counsel brought this omission to the court's attention. While Judge
Sprizzo was considering whether to take remedial action, the jury sent him a
note indicating it had reached a verdict. The judge then announced he would
not accept the verdict, but instead would give a supplemental charge defining
reasonable doubt and send the jury back to reconsider its verdict in light of the
supplemental instruction. There was no objection to this procedure or the
content of the supplemental charge.

30

After deliberating an additional two and a half hours, the jury returned a verdict

of guilty against both defendants. Defendants' subsequent motion for a new trial
was denied on the ground that defense counsel's failure to object or move for a
mistrial prior to the second deliberation waived the issue. On appeal, Fernandez
contends that the initial charge's failure to define reasonable doubt
impermissibly tainted the jury's deliberations and, further, that he did not
knowingly and voluntarily waive his right to a mistrial.
31

Although application of the reasonable-doubt standard in criminal cases is

required as a matter of due process, "the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to do so as a matter of
course." Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d
583 (1994). In fact, it has been observed that attempts to clarify reasonable
doubt tend to create more confusion than does the expression itself. Note,
Reasonable Doubt: An Argument Against Definition, 108 Harv. L.Rev.1955,
1957 (1995). Because of the difficulty of articulating an acceptable definition,
several circuits, including this one, generally discourage trial courts from
attempting to define the term. See, e.g., United States v. Ivic, 700 F.2d 51, 69
(2d Cir.1983); United States v. Bruce, 109 F.3d 323, 329 (7th Cir.1997) ("
[N]either trial courts nor counsel should attempt to define 'reasonable doubt' for
the jury."), petition for cert. filed, --- U.S.L.W. ---- (U.S. June 6, 1997) (No. 969271); United States v. Nolasco, 926 F.2d 869, 872 (9th Cir.1991); United
States v. Ricks, 882 F.2d 885, 894 (4th Cir.1989); Thompson v. Lynaugh, 821
F.2d 1054, 1060-61 (5th Cir.1987). But see Friedman v. United States, 381
F.2d 155, 160 (8th Cir.1967) (trial courts are required to define reasonable
doubt); Blatt v. United States, 60 F.2d 481, 481 (3d Cir.1932) (same). Hence, a
trial court's failure to define reasonable doubt cannot, standing alone, constitute
reversible error.

32

Instead, jury instructions must be viewed in their entirety to ensure that the
instructions, read as a whole, correctly convey the reasonable-doubt concept to
the jury. United States v. Birbal, 62 F.3d 456, 462 (2d Cir.1995). We will
disturb a conviction only when it appears reasonably likely that the jury
understood the instructions to allow it to convict on evidence insufficient to
prove every element of the offense charged beyond a reasonable doubt. See
Victor, 511 U.S. at 22, 114 S.Ct. at 1251.

33

In the case at hand, the court's initial charge to the jury repeatedly referred to
the reasonable-doubt standard. The jury was instructed that "[t]he government
bears the sole and exclusive burden of establishing the elements [of the crime]
beyond a reasonable doubt" and that "[e]ach [of those elements] must be proved
beyond a reasonable doubt." Judge Sprizzo emphasized that "[the] presumption
of innocence remains with the defendant ... until such time, if ever, as you, the

jury, are convinced that the government has proved all of the elements of the
offense against each defendant beyond a reasonable doubt." Thus, even if the
court had declined to add the supplemental charge defining reasonable doubt,
the original charge adequately conveyed the appropriate standard of proof to
the jury.
34

Nor do the circumstances surrounding the two deliberation sessions suggest

that the jury failed to apply the correct standard. When the jury returned its first
verdict, Judge Sprizzo explained that he could not accept the verdict and
delivered a standard instruction on the meaning of reasonable doubt. He then
directed the jury to recommence its examination of all the evidence in light of
the supplemental instruction and stated again that the government bore the
burden of proving each defendant guilty beyond a reasonable doubt. The jurors
reached their second verdict after deliberating for an additional two hours--an
amount of time comparable to that spent prior to reaching the first verdict-which suggests that they took seriously the admonition to review the evidence
de novo, without relying on their initial decision. Absent contrary evidence, we
assume the jury followed the judge's instructions and applied the proper
standard.

35

Although Fernandez apparently concedes that the substance of the

supplemental charge was legally sufficient, he believes the lapse of over 12
hours between the original charge and the "curative" supplemental instruction
and the weakness of the government's case against him should be taken into
account in determining whether the initial, allegedly improper instruction was
cured. Both the timeliness of a trial court's curative measures and the relative
weakness of the government's case may be relevant to the prejudice suffered by
a defendant as a result of an erroneous instruction. See United States v. Oliver,
766 F.2d 252, 254 (6th Cir.1985) (prejudice caused by erroneous instruction
not cured where curative instruction given after defense counsel tailored closing
argument to initial, erroneous charge). Yet neither a lapse of time nor the
relative persuasiveness of legally sufficient evidence can create prejudice where
there was no error initially. Because the trial court's first charge was sufficient
and legally correct, appellant was not entitled to any curative measures, timely
or otherwise. Prejudice may not be found therefore from the manner in which
the trial court took such measures.

36

Fernandez urges he was entitled to a mistrial when the court first discovered
the omission of the reasonable doubt instruction from the initial charge. He
declares that because he was not specifically offered a mistrial, his waiver of
the "right" to a mistrial was not knowing and voluntary. For this proposition, he
relies on United States v. Lane, 624 F.2d 1336 (5th Cir.1980), where a trial

court that had inadvertently omitted several pages of its jury charge, including a
definition of reasonable doubt, offered the defendant his choice of three
curative alternatives: (1) a supplemental instruction consisting solely of the
omitted portions of the charge, (2) a complete recharging of the jury, including
both the instructions already given and those omitted, or (3) a new trial. Id. at
1339. After conferring with counsel, Lane elected the second alternative, but on
appeal argued that he had not knowingly and voluntarily waived his right to the
third alternative, a mistrial. Id. In affirming his conviction the Fifth Circuit
noted that Lane's decision to decline the mistrial option was informed by advice
of counsel and was entirely voluntary. Id. at 1340.
37

Lane does not stand for the proposition that trial courts must, sua sponte, offer a
mistrial in every case in which the jury charge may have been erroneous.
Neither this Circuit nor, to our knowledge, any other has adopted so expansive a
rule. Instead, Lane simply reiterates the familiar principle that a waiver not
knowingly, intelligently, and voluntarily made will not be enforced. See, e.g.,
United States v. Ready, 82 F.3d 551, 556 (2d Cir.1996) (waiver of a right must
be knowing and voluntary to be effective). Because appellant failed to request a
mistrial prior to the jury's second verdict, the refusal to grant him one later is
reviewed for plain error. As discussed earlier, the failure to define reasonable
doubt was not error, plain or otherwise, and appellant should not now be heard
to complain because he had the good fortune to win a curative instruction where
none was warranted.

IV Sentencing Issues
A. Capacity and Intent
38

Fernandez challenges the calculation of his offense level under the Sentencing
Guidelines as having attributed to him an amount of cocaine that he was not
capable of producing. The government has the burden of proving facts relevant
to sentencing by a preponderance of the evidence, see United States v. Jones,
30 F.3d 276, 286 (2d Cir.1994); United States v. Podlog, 35 F.3d 699, 706 (2d
Cir.1994), and a reviewing court will reject a sentencing court's factual findings
only when they are clearly erroneous, see United States v. Davis, 967 F.2d 84,
88-89 (2d Cir.1992).

39

The Sentencing Guidelines provide that the offense level of a defendant

convicted of a narcotics offense is ordinarily governed by the amount of
narcotics involved, U.S. Sentencing Guidelines Manual (U.S.S.G.) 2D1.1(a)
(3) & (c), and that quantity ordinarily includes the quantity under negotiation
unless the sentencing court finds that the defendant lacked the intent and the

ability to produce the negotiated quantity, see U.S.S.G. 2D1.1, comment.

(n.12). Where the government contends that the defendant personally
negotiated to produce a contested quantity of drugs, the proof must demonstrate
that the defendant intended to produce such an amount. Hendrickson, 26 F.3d
at 332. In addition, where ability and intent are at issue, the sentencing court is
obligated to make specific findings of fact that the defendant intended to and
was reasonably capable of producing the particular quantity for which
defendant is being sentenced. See Jacobo, 934 F.2d at 416. The required
findings must be sufficient to permit appellate review, a standard that may be
satisfied by the sentencing court's adoption of the factual findings in the
presentence report. See United States v. Thompson, 76 F.3d 442, 457 (2d
Cir.1996).
40

Defendant maintains both that the district court failed to make a sufficiently
specific finding as to his ability and intent to produce five kilograms of cocaine
and that such a finding, if made, would not be supported by a preponderance of
the evidence. The record refutes defendant's first point. When defense counsel
raised the issue of Fernandez' capacity to produce the cocaine, the trial court
observed that the appropriate offense level depended upon whether defendant
had the capacity to deliver the amount alleged and declared that it was
"satisfied that [Fernandez and Nunez] had the capacity." When the defendant
protested and said he was unable to produce the drugs, the trial judge replied,
"I saw the tapes. I tried this case. I don't believe what you are telling me now."
Moreover, in his written judgment form Judge Sprizzo expressly adopted the
presentence report's factual findings of capacity and intent and its guideline
application. The statements at sentencing and in the written judgment are each
independently adequate to satisfy the sentencing court's obligation to make
findings of fact sufficient to permit appellate review.

41

Appellant's second argument, that the evidence was insufficient to sustain a

finding of capacity and intent, essentially reprises his original argument that the
conviction itself was rendered without legally sufficient support. Because we
have already determined that the evidence presented at trial was sufficient to
allow a jury to find capacity and intent beyond a reasonable doubt, we
necessarily conclude that a sentencing court considering the same evidence
could reasonably find that the government had established capacity and intent
under the less stringent preponderance of the evidence standard applied to
disputed issues of fact at sentencing.

42

Fernandez asserts that this result is at odds with our holding in Hendrickson, 26
F.3d 321. In that case Customs informants testified that early in the course of an
undercover investigation, Hendrickson had proposed a plan to import 50-60

kilograms of heroin from Nigeria, but he later expressly disavowed the plan,
explaining that his Nigerian contacts were not interested and that "we don't
have the funds to go." Id. at 325. Hendrickson repeatedly rebuffed informants'
attempts to revive the 50-60 kilogram importation scheme with promises that
the "big deal" would take place later. Id. at 328. Instead, he offered
investigators much smaller quantities and after two years had produced a total
of only 77 grams of heroin. Id. at 328-29. At sentencing the trial court found
Hendrickson both willing and able to produce 50-60 kilograms of heroin and
sentenced him accordingly.
43

On appeal, we noted that negotiations ordinarily constitute reliable admissions

as to a defendant's intent to produce a particular quantity of narcotics in the
course of a conspiracy. Id. at 338 n. 10. But see United States v. Crespo, 982
F.2d 483, 485 (11th Cir.1993) ("Negotiations between [defendant] and
[government] agents were not sufficient in themselves to prove capability of
[defendant] to actually produce [proposed quantities of narcotics]."). We also
held, however, that a sentencing court should consider whether alleged
"negotiations" were sufficiently specific as to logistical concerns such as price,
quantity, and delivery to constitute a plan rather than an exploratory discussion
or "mere puffery," and whether the coconspirators took any action--such as
seeking financing or making arrangements for delivery--to procure the
narcotics. Hendrickson, 26 F.3d at 338. Because the trial court failed to address
the effects of Hendrickson's repeated pre-arrest disavowals of the 50-60
kilogram importation scheme with regard to his ability and intent to produce
the amount of heroin charged in the indictment, we remanded for resentencing.
Id. at 341.

44

Fernandez contends that Hendrickson should be broadly read to preclude a

finding of capacity to produce a particular quantity of narcotics based solely on
evidence that the defendant negotiated to produce that amount. Appellant's
reading of Hendrickson ignores its explicit acknowledgement that proof of
negotiated amounts of narcotics "will often outweigh any post-conviction
claims that the defendant lacked either the intent or the ability to produce the
contested amount." Id. at 338 n. 10. Thus, we read Hendrickson to hold only
that where a defendant disavows a prior representation of his intent and ability
to obtain narcotics, the sentencing court must consider those contradictory
statements in its assessment of the defendant's capability and intent.

45

In none of the taped conversations presented at trial did Fernandez disclaim his
promise to supply Besho with five kilograms of cocaine. In fact, the record was
replete with proof of his efforts to assure Besho that he had the cocaine in hand
and would produce it as soon as Besho agreed to meet him in Washington

Heights. Absent evidence other than Fernandez' own post-arrest assertion that
he intended to commit a robbery, the sentencing court was justified in relying
on Fernandez' pre-arrest promises to deliver five kilograms of cocaine.
46

Moreover, the negotiations were not the sole evidence on which the court's
capacity and intent findings could have been based. The district court was
entitled to credit Esa's recorded statements that he had received three ounces
(approximately 85 grams) of cocaine from Fernandez and that the latter was
expecting a shipment of 20-30 kilograms demonstrated that he had access to
large quantities of cocaine and was in the business of selling narcotics.
Accordingly, the district court's findings with regard to capacity and intent were
not clearly erroneous.

B. Enhancement
47

Finally, defendant declares the district court chilled his right to testify when it
warned him that he risked a sentencing enhancement for obstruction of justice
if he insisted on pursuing his claim of lack of intent and capability at a presentencing hearing. Defendant avers this admonition showed that the court had
improperly predetermined that the enhancement would apply regardless of the
content of defendant's testimony.

48

An enhancement for obstruction of justice may not be imposed in the absence

of a specific finding that the defendant testified falsely as to a material issue
with the intent to obstruct justice. See United States v. Giraldo, 80 F.3d 667,
680 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996).
These findings must be made independently at the time of sentencing, and do
not automatically follow when a defendant's testimony has been rejected by a
judge or jury. United States v. Cunavelis, 969 F.2d 1419, 1423 (2d Cir.1992).

49

Defendant's declaration that the sentencing court threatened automatic

application of the obstruction enhancement is belied by the record. When
defense counsel requested a hearing on the issue of capacity and intent, the trial
court reminded him that his codefendant, Nunez, had received an obstruction
enhancement after he testified at a similar hearing. Judge Sprizzo offered to
hold a hearing if Fernandez wanted one. The judge expressly left open the
possibility he might change his mind if defendant's testimony was credible, but
told Fernandez there would be "a downside" were he to be impeached. These
statements did not threaten an automatic obstruction enhancement had
defendant insisted on a hearing. Instead, the trial judge simply advised
defendant that, in light of the taped telephone conversations almost certain to be
introduced in rebuttal to his testimony, he faced a substantial risk of incurring

an enhancement if he testified at such a hearing.

50

We have not held that a sentencing court may not warn a defendant of the
possibility of a sentencing enhancement, nor are we inclined to do so in this
case. It seems sensible to us for a sentencing court to offer a realistic
assessment of the possible, or even probable, negative consequences of
pursuing a presentence hearing with respect to a factual issue, provided there
has been no predetermination that those consequences will result regardless of
the outcome of the requested hearing. Judge Sprizzo's statements show he
maintained an open mind as to defendant's credibility. Hence, his warning to
Fernandez was not improper.

CONCLUSION
51

For the reasons stated above, the judgment of the district court is affirmed.

The Honorable J. Daniel Mahoney, who was a member of the panel, died on
October 23, 1996, and the appeal is being decided by the remaining two
members of the panel, who are in agreement. See Local Rule 0.14(b)

**

Hon. Jane A. Restani, United States Judge for the Court of International Trade,
sitting by designation